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Appeals

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  • The wife had previously sought to register and enforce the financial provisions of a 2010 French order through the English courts, but rather than applying under the Maintenance Regulation in the Family Court had made the application in the High Court. The mistake came to light in March 2020. An application for rectification had failed since there was insufficient evidence for the court to be satisfied that the husband was habitually resident or had assets in England, and previous orders for enforcement were declared null and void. The wife now appealed against this decision on the ground that the judge had erred in failing to find the conditions in FPR PD 34E para 4 to have been satisfied, but her appeal was dismissed by the Court of Appeal on the basis of the respondent's notice, which argued that the court had made an error of law in finding that FPR 4.1(6) was sufficiently wide to allow the relief sought by the wife. The wording of FPR 4.1(6) did not provide for rectification, only for variation or revocation. In King LJ's judgment, even if FPR 4.1(6) had been engaged and an order of variation made, the court could not possibly justify backdating the order to September 2017 when the evidence necessary for the making of the order had not been before the court at the time the original order was made. It was therefore unnecessary for the Court of Appeal to hear argument in relation to FPR PD 34E. Lewison LJ and Sir Nicholas Patten agreed. The appeal was dismissed. Judgment, 31/07/2021, free
  • The parties were aged 63. They had married in 1979, and separated in 2018. Four applications were made concerning an arbitrator's award made in 2020. The wife applied for the husband to show cause as to why he should not be held to the terms of the award. The husband challenged the award pursuant to s 68 of the Arbitration Act 1996, applied for leave to appeal on a point of law under s 69, and had invited the Family Court to decline to make an order in the terms of the award. The husband's challenges to the award failed on the basis that the award was not wrong; there was no relevant uncertainty, ambiguity, irregularity, or failure to deal with the issues. The disordered procedural steps in this case, together with his knowledge of similar procedural chaos in other cases, led Mostyn J to formulate guidance about the correct procedure to be adopted where one party wished to challenge an arbitral award, or where a party wished to implement an arbitral award in the face of opposition from the other party. The guidance, including a proposed standard order, was set out in the Appendix to the judgment and was issued with the authority and approval of the President of the Family Division. Judgment, 31/07/2021, free
  • The Family Court had found it impossible to say whether the mother or her then boyfriend had been responsible for very serious injuries to a one-year-old child, but in the criminal proceedings the boyfriend had been convicted of causing them, and the mother acquitted of those charges. The Court of Appeal now considered her appeal from the refusal of an application to reopen the Family Court's findings of fact. Peter Jackson LJ noted that for an appeal of this nature to succeed an appellant must show that the judge made a material error of law or reached a conclusion that was not reasonably available. The applicant had not succeeded in that task. In this complex case, the judge had the marked advantage of having conducted a very substantial fact-finding hearing that left him with a distinctive view of the strengths and weaknesses of the evidence that he had read and heard. His judgment showed conspicuous care and command of the issues. The mother's case was essentially a rehearsal of the submissions made to the judge, with a complaint that he had not attached more or less weight to certain elements, and that approach did not really engage with the appeal test. Singh and Stuart-Smith LJJ agreed. The judge's decision was upheld and the appeal was dismissed. Judgment, 26/05/2021, free
  • Part III of the Matrimonial and Family Proceedings Act 1984 provided for the making of an application for financial relief following an overseas divorce. By s 13, no application could be made without the leave of the court, and by s 13(1), no leave was to be granted unless the court considered that there were substantial grounds for making such an application. In this case, the wife appealed against a 2019 order of Cohen J, where he had set aside his own ex parte order for leave and on re-consideration of her application had refused to grant leave. The Court of Appeal considered the proper approach to an application made for the grant of leave and to any subsequent application to set aside an ex parte order for leave. In King LJ's view, there had been no basis for the judge to conclude that he had not properly considered the legislative purpose of Part III: the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England. Rather, having heard argument on both sides, he had regretted granting leave. David Richards and Moylan LJJ agreed. The wife's appeal against the order setting aside leave for her to make an application for financial relief was allowed. It was therefore unnecessary to consider whether the judge had been wrong in refusing leave when he reconsidered the application. As to the impact of Brexit upon s 16(3), there were likely to be few if any cases outstanding to which it would apply and future Part III applications would be considered without reference to the Maintenance Regulation. Judgment, 14/05/2021, free
  • The father appealed concerning three aspects of a case management order made pursuant to Children Act 1989 proceedings. He wished to enforce/vary a child arrangements order, and contended that the judge had erred in refusing to order a fact-finding hearing to investigate his allegations of parental alienation, limiting the scope of the local authority's section 7 report, and refusing to appoint a Children's Guardian under FPR 16.4. The mother's position was that the father's application was part of a long-running campaign of meritless court applications aimed at undermining the current arrangements. Williams J allowed the appeal but only to a limited extent in respect of the remit of the section 7 report. The application would be remitted to the Central Family Court with a direction that an addendum section 7 report should be provided by Islington Children's Services regarding the son's expressed wishes in the light of the contact notes. In respect of all other grounds the appeal was refused. Williams J noted that the case illustrated the problems caused by the failure of parties and their advocates to focus on the real issues which the court had to grapple with at a time-limited FHDRA. Position statements which far exceeded the permitted length and did not clearly and succinctly identify the main issues to be determined were unhelpful. Judgment, 02/05/2021, free

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